Wagner v. Town of Garrett
| Decision Date | 27 March 1889 |
| Citation | 20 N.E. 706,118 Ind. 114 |
| Parties | Wagner et al. v. Town of Garrett. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, De Kalb county; R. Wes McBride, Judge.
Action by the town of Garrett against J. William Wagner and John Zeek. Judgment was rendered against the defendants, and they appeal.
W. L. Penfield, for appellants. E. D. Hartman and L. Covell, for appellee.
The town of Garrett complained of Wagner and Zeek for having violated sections 1, 4, and 7 of one of the general ordinances of the town, which made it unlawful for any person, either directly or indirectly, to sell any spirituous, vinous, malt, or other intoxicating liquors in a less quantity than a quart at a time, within the corporate limits, without being duly licensed. It is charged in the complaint that the defendants violated the above sections, by selling intoxicating malt liquor and whisky to persons named, in a less quantity than a quart, on several days named, without having first obtaining a license so to do, according to the provisions of the ordinance, a copy of which is attached to and made a part of the complaint. A penalty of $50 is prescribed for each and every violation of the ordinance. In a complaint predicated upon a town ordinance, it is sufficient to aver that the ordinance was duly adopted by the board of trustees of the town, and to set out in or with the complaint so much of the ordinance as relates to the action or prosecution. Clevenger v. Town of Rushville, 90 Ind. 258;Vinson v. Town of Monticello, 19 N. E. Rep. 734, (present term.)
It is averred that the ordinance violated is “attached to and made a part of the complaint,” and we find from the record that a copy was so attached and filed. The ordinance violated gives the right of action, and is therefore so far the foundation of the suit as that a copy filed with the complaint will be looked to in considering whether a demurrer was correctly overruled, without other averments than those above set out. The complaint was sufficient.
It is next contended that the ordinance is void because it makes provision for the granting of licenses to sell within the corporate limits only to such persons as have procured and hold a license from the board of commissioners of De Kalb county. Hence, it is argued, since section 5314, Rev. St. 1881, authorizes the county commissioners to grant licenses only to male inhabitants of the state, the ordinance results in an unjust discrimination against women and non-residents. Assuming, for the purposes of this case, that only male inhabitants of the state are entitled to obtain license to retail intoxicating liquors in a less quantity than a quart, ( Ex parte Laboyteaux, 65 Ind. 545;Murphy v. Board, etc., 73 Ind. 483,) we are nevertheless constrained to hold, since it appears that the defendants are male inhabitants of this state, and therefore presumably entitled to license, if they had chosen to make application therefor, that they cannot thus become the champions of others who are supposed to be unjustly discriminated against. If we should grant that women and non-residents have equal constitutional rights in respect to engaging in the sale of intoxicating liquors as have male inhabitants of the state, it might follow that as to those who were injuriously affected, or against whom the ordinance discriminates, it would be invalid, while as to those to whom the ordinance assumes to grant a special privilege it would be entirely valid. Since women and non-residents have so far waived any constitutional right they may have in respect to selling intoxicating liquors, we content ourselves for the present with holding that, as the appellants are confessedly of those who enjoy the monopoly which the...
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